Purpose: The purpose of the model rules is to provide
information to records requestors and state and local agencies
about "best practices" for complying with the Public Records
Act, RCW 42.17.250-[42.17].348. The anticipated effect of the
model rules is to streamline compliance, standardize best
practices throughout the state, and reduce litigation by
establishing a culture of compliance among agencies and a
culture of cooperation among requestors.

Clarifies that instead of agency
needing to "obtain" additional
time to fulfill a request, an
"unjustified" failure of the
agency to provide records
within its reasonable estimate is
a denial of access.

Adds that if an agency creates
a new record it should obtain
the consent of the requestor to
ensure that the requestor was
not requesting the underlying
documents instead of the
agency-created new document.

Clarifies that an agency need
not "obtain" additional time
from the requestor to fully
respond and adds that an
"unjustified" failure to fully
respond by the expiration of a
reasonable estimate is a denial
of access to the record.

INTRODUCTORY COMMENTSNEW SECTIONWAC 44-14-00001
Statutory authority and purpose.
The
legislature directed the attorney general to adopt advisory
model rules on public records compliance and to revise them
from time to time. RCW 42.17.348 (2) and (3)/42.56.570 (2)
and (3). The purpose of the model rules is to provide
information to records requestors and state and local agencies
about "best practices" for complying with the Public Records
Act, RCW 42.17.250/42.56.040 through 42.17.348/42.56.570
("act"). The overall goal of the model rules is to establish
a culture of compliance among agencies and a culture of
cooperation among requestors by standardizing best practices
throughout the state. The attorney general encourages state
and local agencies to adopt the model rules (but not
necessarily the comments) by regulation or ordinance.

The act applies to all state agencies and local units of
government. The model rules use the term "agency" to refer to
either a state or local agency. Upon adoption, each agency
would change that term to name itself (such as changing
references from "name of agency" to "city"). To assist state
and local agencies considering adopting the model rules, an
electronic version of the rules is available on the attorney
general's web site, www.atg.wa.gov/records/modelrules.

The model rules are the product of an extensive outreach
project. The attorney general held thirteen public forums all
across the state to obtain the views of requestors and
agencies. Many requestors and agencies also provided detailed
written comments that are contained in the rule-making file.
The model rules reflect many of the points and concerns
presented in those forums.

The model rules provide one approach (or, in some cases,
alternate approaches) to processing public records requests.
Agencies vary enormously in size, resources, and complexity of
requests received. Any "one-size-fits-all" approach in the
model rules, therefore, may not be best for requestors and
agencies.

[]

NEW SECTIONWAC 44-14-00002
Format of model rules.
We are
publishing the model rules with comments. The comments have
five-digit WAC numbers such as WAC 44-14-04001. The model
rules themselves have three-digit WAC numbers such as WAC 44-14-040.

The comments are designed to explain the basis and
rationale for the rules themselves as well as provide broader
context and legal guidance. To do so, the comments contain
many citations to statutes, cases, and formal attorney
general's opinions.

[]

NEW SECTIONWAC 44-14-00003
Model rules and comments are nonbinding.
The model rules, and the comments accompanying them, are
advisory only and do not bind any agency. Accordingly, many
of the comments to the model rules use the word "should" or
"may" to describe what an agency or requestor is encouraged to
do. The use of the words "should" or "may" are permissive,
not mandatory, and are not intended to create any legal duty.

While the model rules and comments are nonbinding, they
should be carefully considered by requestors and agencies.
The model rules and comments were adopted after extensive
statewide hearings and voluminous comments from a wide variety
of interested parties.

[]

NEW SECTIONWAC 44-14-00004
Recodification of the act.
On July 1,
2006, the act will be recodified. Chapter 274, Laws of 2005.
The act will be known as the "Public Records Act" and will be
codified in chapter 42.56 RCW. The exemptions in the act are
recodified and grouped together by topic. The recodification
does not change substantive law. The model rules provide dual
citations to the current act, chapter 42.17 RCW, and the newly
codified act, chapter 42.56 RCW (for example, RCW 42.17.340/42.56.550).

[]

NEW SECTIONWAC 44-14-00005
Training is critical.
The act is
complicated, and compliance requires training. Training can
be the difference between a satisfied requestor and expensive
litigation. The attorney general's office strongly encourages
agencies to provide thorough and ongoing training to agency
staff on public records compliance. All agency employees
should receive basic training on public records compliance and
records retention; public records officers should receive more
intensive training.

[]

NEW SECTIONWAC 44-14-00006
Additional resources.
Several web sites
provide information on the act. The attorney general office's
web site on public records is
www.atg.wa.gov/records/deskbook.shtml. The municipal research
service center, an entity serving local governments, provides
a public records handbook at
www.mrsc.org/Publications/prdpub04.pdf. A requestor's
organization, the Washington Coalition for Open Government,
has materials on its site at www.washingtoncog.org.

The Washington State Bar Association is publishing a
twenty-two-chapter deskbook on public records in 2006. It
will be available for purchase at www.wsba.org.

[]

AUTHORITY AND PURPOSENEW SECTIONWAC 44-14-010
Authority and purpose.
(1) RCW 42.17.260(1)/42.56.070(1) requires each agency to make
available for inspection and copying nonexempt "public
records" in accordance with published rules. The act defines
"public record" to include any "writing containing information
relating to the conduct of government or the performance of
any governmental or proprietary function prepared, owned,
used, or retained" by the agency. RCW 42.17.260(2)/42.56.070(2) requires each agency to set forth
"for informational purposes" every law, in addition to the
Public Records Act, that exempts or prohibits the disclosure
of public records held by that agency.

(2) The purpose of these rules is to establish the
procedures (name of agency) will follow in order to provide
full access to public records. These rules provide
information to persons wishing to request access to public
records of the (name of agency) and establish processes for
both requestors and (name of agency) staff that are designed
to best assist members of the public in obtaining such access.

(3) The purpose of the act is to provide the public full
access to information concerning the conduct of government,
mindful of individuals' privacy rights and the desirability of
the efficient administration of government. The act and these
rules will be interpreted in favor of disclosure. In carrying
out its responsibilities under the act, the (name of agency)
will be guided by the provisions of the act describing its
purposes and interpretation.

[]

Comments to WAC 44-14-010NEW SECTIONWAC 44-14-01001
Scope of coverage of Public Records Act.
The act applies to an "agency." RCW 42.17.260(1)/42.56.070(1). "'Agency' includes all state
agencies and all local agencies. 'State agency' includes
every state office, department, division, bureau, board,
commission, or other state agency. 'Local agency' includes
every county, city, town, municipal corporation,
quasi-municipal corporation, or special purpose district, or
any office, department, division, bureau, board, commission,
or agency thereof, or other local public agency." RCW 42.17.020(2).

Court files and judges' files are not subject to the act.1
Access to these records is governed by court rules and common
law. The model rules, therefore, do not address access to
court records.

An entity which is not an "agency" can still be subject
to the act when it is the functional equivalent of an agency.
Courts have applied a four-factor, case-by-case test. The
factors are:

(1) Whether the entity performs a government function;

(2) The level of government funding;

(3) The extent of government involvement or regulation;
and

(4) Whether the entity was created by the government.
Op. Att'y Gen. 2 (2002).2

Some agencies, most notably counties, are a collection of
separate quasi-autonomous departments which are governed by
different elected officials (such as a county assessor and
prosecuting attorney). However, the act defines the county as
a whole as an "agency" subject to the act. RCW 42.17.020(2).
An agency should coordinate responses to records requests
across departmental lines. RCW 42.17.253(1) (agency's public
records officer must "oversee the agency's compliance" with
act).

NEW SECTIONWAC 44-14-01002
Requirement that agencies adopt
reasonable regulations for public records requests.
The act
provides: "Agencies shall adopt and enforce reasonable rules
and regulations...to provide full public access to public
records, to protect public records from damage or
disorganization, and to prevent excessive interference with
other essential functions of the agency.... Such rules and
regulations shall provide for the fullest assistance to
inquirers and the most timely possible action on requests for
information." RCW 42.17.290/42.56.100. Therefore, an agency
must adopt "reasonable" regulations providing for the "fullest
assistance" to requestors and the "most timely possible action
on requests."

At the same time, an agency's regulations must "protect
public records from damage or disorganization" and "prevent
excessive interference" with other essential agency functions.
Another provision of the act states that providing public
records should not "unreasonably disrupt the operations of the
agency." RCW 42.17.270/42.56.080. This provision allows an
agency to take reasonable precautions to prevent a requestor
from being unreasonably disruptive or disrespectful to agency
staff.

[]

NEW SECTIONWAC 44-14-01003
Construction and application of act.
The act declares: "The people of this state do not yield
their sovereignty to the agencies that serve them. The
people, in delegating authority, do not give their public
servants the right to decide what is good for the people to
know and what is not good for them to know. The people insist
on remaining informed so that they may maintain control over
the instruments that they have created." RCW 42.17.251/42.56.030. The act further provides: "...mindful of
the right of individuals to privacy and of the desirability of
the efficient administration of government, full access to
information concerning the conduct of government on every
level must be assured as a fundamental and necessary
precondition to the sound governance of a free society." RCW 42.17.010(11). The act further provides: "Courts shall take
into account the policy of (the act) that free and open
examination of public records is in the public interest, even
though such examination may cause inconvenience or
embarrassment to public officials or others." RCW 42.17.340(3)/42.56.550(3).

Because the purpose of the act is to allow people to be
informed about governmental decisions (and therefore help keep
government accountable) while at the same time being "mindful
of the right of individuals to privacy," it should not be used
to obtain records containing purely personal information that
has absolutely no bearing on the conduct of government.

The act emphasizes three separate times that it must be
liberally construed to effect its purpose, which is the
disclosure of nonexempt public records. RCW 42.17.010,
42.17.251/42.56.030, 42.17.920.1 The act places the burden on
the agency of proving a record is not subject to disclosure or
that its estimate of time to provide a full response is
"reasonable." RCW 42.17.340 (1) and (2)/42.56.550 (1) and
(2). The act also encourages disclosure by awarding a
requestor reasonable attorneys fees, costs, and a daily
penalty if the agency fails to meet its burden of proving the
record is not subject to disclosure or its estimate is not
"reasonable." RCW 42.17.340(4)/42.56.550(4).

An additional incentive for disclosure is RCW 42.17.258,
which provides: "No public agency, public official, public
employee, or custodian shall be liable, nor shall a cause of
action exist, for any loss or damage based upon the release of
a public record if the public agency, public official, public
employee, or custodian acted in good faith in attempting to
comply" with the act.

Note:

1See King County v. Sheehan, 114 Wn. App. 325, 338, 57 P.3d 307 (2002) (referring to the three
legislative intent provisions of the act as "the thrice-repeated legislative mandate that exemptions under the
Public Records Act are to be narrowly construed.").

[]

AGENCY DESCRIPTION -- CONTACT INFORMATION -- PUBLIC RECORDS
OFFICERNEW SECTIONWAC 44-14-020
Agency description -- Contact
information -- Public records officer.
(1) The (name of agency)
(describe services provided by agency). The (name of
agency's) central office is located at (describe). The (name
of agency) has field offices at (describe, if applicable).

(2) Any person wishing to request access to public
records of (agency), or seeking assistance in making such a
request should contact the public records officer of the (name
of agency):

Public Records Officer

(Agency)

(Address)

(Telephone number)

(fax number)

(e-mail)

Information is also available at the (name of agency's)
web site at (web site address).

(3) The public records officer will oversee compliance
with the act but another (name of agency) staff member may
process the request. Therefore, these rules will refer to the
public records officer "or designee." The public records
officer or designee and the (name of agency) will provide the
"fullest assistance" to requestors; create and maintain for
use by the public and (name of agency) officials an index to
public records of the (name of agency, if applicable); ensure
that public records are protected from damage or
disorganization; and prevent fulfilling public records
requests from causing excessive interference with essential
functions of the (name of agency).

[]

Comments to WAC 44-14-020NEW SECTIONWAC 44-14-02001
Agency must publish its procedures.
An
agency must publish its public records policies,
organizational information, and methods for requestors to
obtain public records. RCW 42.17.250(1)/42.56.040(1).1 A
state agency must publish its procedures in the Washington
Administrative Code and a local agency must prominently
display and make them available at the central office of such
local agency. RCW 42.17.250(1)/42.56.040(1). An agency
should post its public records rules on its web site. An
agency cannot invoke a procedure if it did not publish or
display it as required (unless the party had actual and timely
notice of its contents). RCW 42.17.250(2)/42.56.040(2).

NEW SECTIONWAC 44-14-02002
Public records officers.
An agency must
appoint a public records officer whose responsibility is to
serve as a "point of contact" for members of the public
seeking public records. RCW 42.17.253(1). The purpose of
this requirement is to provide the public with one point of
contact within the agency to make a request. A state agency
must provide the public records officer's name and contact
information by publishing it in the state register. A state
agency is encouraged to provide the public records officer's
contact information on its web site. A local agency must
publish the public records officer's name and contact
information in a way reasonably calculated to provide notice
to the public such as posting it on the agency's web site.
RCW 42.17.253(3).

The public records officer is not required to personally
fulfill requests for public records. A request can be
fulfilled by an agency employee other than the public records
officer. If the request is made to the public records
officer, but should actually be fulfilled by others in the
agency, the public records officer should route the request to
the appropriate person or persons in the agency for
processing. An agency is not required to hire a new staff
member to be the public records officer.

[]

AVAILABILITY OF PUBLIC RECORDSNEW SECTIONWAC 44-14-030
Availability of public records.
(1) Hours
for inspection of records. Public records are available for
inspection and copying during normal business hours of the
(name of agency), (provide hours, e.g., Monday through Friday,
8:00 a.m. to 5:00 p.m., excluding legal holidays). Records
must be inspected at the offices of the (name of agency).

(2) Records index. (If agency keeps an index.) An index
of public records is available for use by members of the
public, including (describe contents). The index may be
accessed on-line at (web site address). (If there are
multiple indices, describe each and its availability.)

(If agency is local agency opting out of the index
requirement.) The (name of agency) finds that maintaining an
index is unduly burdensome and would interfere with agency
operations. The requirement would unduly burden or interfere
with (name of agency) operations in the following ways
(specify reasons).

(3) Organization of records. The (name of agency) will
maintain its records in a reasonably organized manner. The
(name of agency) will take reasonable actions to protect
records from damage and disorganization. A requestor shall
not take (name of agency) records from (name of agency)
offices without the permission of the public records officer
or designee. A variety of records is available on the (name
of agency) web site at (web site address). Requestors are
encouraged to view the documents available on the web site
prior to submitting a records request.

(4) Making a request for public records.

(a) Any person wishing to inspect or copy public records
of the (name of agency) should make the request in writing on
the (name of agency's) request form, or by letter, fax, or
e-mail addressed to the public records officer and including
the following information:

• Name of requestor;

• Address of requestor;

• Other contact information, including telephone number
and any e-mail address;

• Identification of the public records adequate for the
public records officer or designee to locate the records; and

• The date and time of day of the request.

(b) If the requestor wishes to have copies of the records
made instead of simply inspecting them, he or she should so
indicate and make arrangements to pay for copies of the
records or a deposit. Pursuant to section (insert section),
standard photocopies will be provided at (amount) cents per
page.

(c) A form is available for use by requestors at the
office of the public records officer and on-line at (web site
address).

(d) The public records officer or designee may accept
requests for public records that contain the above information
by telephone or in person. If the public records officer or
designee accepts such a request, he or she will confirm
receipt of the information and the substance of the request in
writing.

[]

Comments to WAC 44-14-030NEW SECTIONWAC 44-14-03001
"Public record" defined.
Courts use a
three-part test to determine if a record is a "public record."
The document must be: A "writing," containing information
"relating to the conduct of government" or the performance of
any governmental or proprietary function, "prepared, owned,
used, or retained" by an agency.1

(1) Writing. A "public record" can be any writing
"regardless of physical form or characteristics." RCW 42.17.020(41). "Writing" is defined very broadly as:
"...handwriting, typewriting, printing, photostating,
photographing, and every other means of recording any form of
communication or representation, including, but not limited
to, letters, words, pictures, sounds, or symbols, or
combination thereof, and all papers, maps, magnetic or paper
tapes, photographic films and prints, motion picture, film and
video recordings, magnetic or punched cards, discs, drums,
diskettes, sound recordings, and other documents including
existing data compilations from which information may be
obtained or translated." RCW 42.17.020(48). An e-mail is a
"writing."

(2) Relating to the conduct of government. To be a
"public record," a document must relate to the "conduct of
government or the performance of any governmental or
proprietary function." RCW 42.17.020(41). Almost all records
held by an agency relate to the conduct of government;
however, some do not. A purely personal record having
absolutely no relation to the conduct of government is not a
"public record." Even though a purely personal record might
not be a "public record," a record of its existence might be.
For example, a record showing the existence of a purely
personal e-mail sent by an agency employee on an agency
computer would probably be a "public record," even if the
contents of the e-mail itself were not.2

(3) "Prepared, owned, used, or retained." A "public
record" is a record "prepared, owned, used, or retained" by an
agency. RCW 42.17.020(41).

A record can be "used" by an agency even if the agency
does not actually possess the record. If an agency uses a
record in its decision-making process it is a "public record."3
For example, if an agency considered technical specifications
of a public works project and returned the specifications to
the contractor in another state, the specifications would be a
"public record" because the agency "used" the document in its
decision-making process.4 The agency could be required to
obtain the public record, unless doing so would be impossible.
An agency cannot send its only copy of a record to a third
party for the sole purpose of avoiding disclosure.5

Sometimes agency employees work on agency business from
home computers. These home computer records (including
e-mail) were "used" by the agency and relate to the "conduct
of government" so they are "public records." RCW 42.17.020(41). However, the act does not authorize unbridled
searches of agency property.6 If agency property is not
subject to unbridled searches, then neither is the home
computer of an agency employee. Yet, because the home
computer documents relating to agency business are "public
records," they are subject to disclosure (unless exempt).
Agencies should instruct employees that all public records,
regardless of where they were created, should eventually be
stored on agency computers. Agencies should ask employees to
keep agency-related documents on home computers in separate
folders and to routinely blind carbon copy ("bcc") work
e-mails back to the employee's agency e-mail account. If the
agency receives a request for records that are solely on
employees' home computers, the agency should direct the
employee to forward any responsive documents back to the
agency, and the agency should process the request as it would
if the records were on the agency's computers.

Notes:

1Confederated Tribes of the Chehalis Reservation v. Johnson, 135 Wn.2d 734, 748, 958 P.2d 260 (1998).
For records held by the secretary of the senate or chief clerk of the house of representatives, a "public
record" is a "legislative record" as defined in RCW 40.14.100. RCW 42.17.020(41).

5See Op. Att'y Gen. 11 (1989), at 4, n.2 ("We do not wish to encourage agencies to avoid the provisions of
the public disclosure act by transferring public records to private parties. If a record otherwise meeting the
statutory definition were transferred into private hands solely to prevent its public disclosure, we expect
courts would take appropriate steps to require the agency to make disclosure or to sanction the responsible
public officers.")

NEW SECTIONWAC 44-14-03002
Times for inspection and copying of
records.
An agency must make records available for inspection
and copying during the "customary office hours of the agency."
RCW 42.17.280/42.56.090. If the agency is very small and does
not have customary office hours of at least thirty hours per
week, the records must be available from 9:00 a.m. to noon,
and 1:00 p.m. to 4:00 p.m. The agency and requestor can make
mutually agreeable arrangements for the times of inspection
and copying.

[]

NEW SECTIONWAC 44-14-03003
Index of records.
State and local
agencies are required by RCW 42.17.260/42.56.070 to provide an
index for certain categories of records. An agency is not
required to index every record it creates. Since agencies
maintain records in a wide variety of ways, agency indices
will also vary. An agency cannot use, rely on, or cite to as
precedent a public record unless it was indexed or made
available to the parties affected by it. RCW 42.17.260(6)/42.56.070(6). An agency should post its index on
its web site.

The index requirements differ for state and local
agencies.

A state agency must index only two categories of records:

(1) All records, if any, issued before July 1, 1990 for
which the agency has maintained an index; and

A local agency may opt out of the indexing requirement if
it issues a formal order specifying the reasons why doing so
would "unduly burden or interfere with agency operations."
RCW 42.17.260 (4)(a)/42.56.070 (4)(a). To lawfully opt out of
the index requirement, a local agency must actually issue an
order or adopt an ordinance specifying the reasons it cannot
maintain an index.

The index requirements of the act were enacted in 1972
when agencies had far fewer records and an index was easier to
maintain. However, technology allows agencies to map out,
archive, and then electronically search for electronic
documents. Agency resources vary greatly so not every agency
can afford to utilize this technology. However, agencies
should explore the feasibility of electronic indexing and
retrieval to assist both the agency and requestor in locating
public records.

[]

NEW SECTIONWAC 44-14-03004
Organization of records.
An agency must
"protect public records from damage or disorganization." RCW 42.17.290/42.56.100. An agency owns public records (subject
to the public's right, as defined in the act, to inspect or
copy nonexempt records) and must maintain custody of them.
RCW 40.14.020; chapter 434-615 WAC. Therefore, an agency
should not allow a requestor to take original agency records
out of the agency's office. An agency may send original
records to a reputable commercial copying center to fulfill a
records request if the agency takes reasonable precautions to
protect the records. See WAC 44-14-07001(5).

The legislature encourages agencies to electronically
store and provide public records:

Broad public access to state and local government records
and information has potential for expanding citizen access to
that information and for providing government services.
Electronic methods of locating and transferring information
can improve linkages between and among citizens . . . and
governments. . . .

It is the intent of the legislature to encourage state and local
governments to develop, store, and manage their public
records and information in electronic formats to meet their
missions and objectives. Further, it is the intent of the
legislature for state and local governments to set priorities
for making public records widely available electronically to
the public.

RCW 43.105.250. An agency could fulfill its obligation to
provide "access" to a public record by providing a requestor
with a link to an agency web site containing an electronic
copy of that record. Agencies are encouraged to do so. For
those without access to the internet, an agency could provide
a computer terminal at its office.

[]

NEW SECTIONWAC 44-14-03005
Retention of records.
An agency is not
required to retain every record it ever created or used. The
state and local records committees approve a general retention
schedule for state and local agency records that applies to
records that are common to most agencies.1 Individual agencies
seek approval from the state or local records committee for
retention schedules that are specific to their agency, or
that, because of particular needs of the agency, must be kept
longer than provided in the general records retention
schedule. The retention schedules for state and local
agencies are available at
www.secstate.wa.gov/archives/gs.aspx.

Retention schedules vary based on the content of the
record. For example, documents with no value such as internal
meeting scheduling e-mails can be destroyed when no longer
needed, but documents such as periodic accounting reports must
be kept for a period of years. Because different kinds of
records must be retained for different periods of time, an
agency is prohibited from automatically deleting all e-mails
after a short period of time (such as thirty days). While
many of the e-mails could be destroyed when no longer needed,
many others must be retained for several years.
Indiscriminate automatic deletion of all e-mails after a short
period may prevent an agency from complying with its retention
duties and could complicate performance of its duties under
the Public Records Act. An agency should have a retention
policy in which employees save retainable documents and delete
nonretainable ones. An agency is strongly encouraged to train
employees on retention schedules.

The lawful destruction of public records is governed by
retention schedules. The unlawful destruction of public
records can be a crime. RCW 40.16.010 and 40.16.020.

An agency is prohibited from destroying a public record,
even if it is about to be lawfully destroyed under a retention
schedule, if a public records request has been made for that
record. RCW 42.17.290/42.56.100. Additional retention
requirements might apply if the records may be relevant to
actual or anticipated litigation. The agency is required to
retain the record until the record request has been resolved.
An exception exists for certain portions of a state employee's
personnel file. RCW 42.17.295/42.56.110.

Note:

1An agency can be found to violate the act and be subject to the attorneys' fees and penalty provision if it
prematurely destroys a requested record. See Yacobellis v. City of Bellingham, 55 Wn. App. 706, 780 P.2d
272 (1989).

[]

NEW SECTIONWAC 44-14-03006
Form of requests.
There is no
statutorily required format for a valid public records
request.1 A request can be sent in by mail. RCW 42.17.290/42.56.100. A request can also be made by e-mail,
fax, or orally. A request should be made to the agency's
public records officer. An agency may prescribe means of
requests in its rules. RCW 42.17.250/42.56.040 and
42.17.260(1)/42.56.070(1); RCW 34.05.220 (state agencies). An
agency is encouraged to make its public records request form
available on its web site.

A number of agencies routinely accept oral public records
requests (for example, asking to look at a building permit).
Some agencies find oral requests to be the best way to provide
certain kinds of records. However, for some requests such as
larger ones, oral requests may be allowed but are problematic.
An oral request does not memorialize the exact records sought
and therefore prevents a requestor or agency from later
proving what was included in the request. Furthermore, as
described in WAC 44-14-04002(1), a requestor must provide the
agency with reasonable notice that the request is for the
disclosure of public records; oral requests, especially to
agency staff other than the public records officer or
designee, may not provide the agency with the required
reasonable notice. Therefore, requestors are strongly
encouraged to make written requests. If an agency receives an
oral request, the agency staff person receiving it should
immediately reduce it to writing and then verify in writing
with the requestor that it correctly memorializes the request.

An agency should have a public records request form. An
agency request form should ask the requestor whether he or she
seeks to inspect the records, receive a copy of them, or to
inspect the records first and then consider selecting records
to copy. An agency request form should recite that inspection
of records is free and provide the per-page charge for
standard photocopies.

An agency request form should require the requestor to
provide contact information so the agency can communicate with
the requestor to, for example, clarify the request, inform the
requestor that the records are available, or provide an
explanation of an exemption. Contact information such as a
name, phone number, and address or e-mail should be provided.
Requestors should provide an e-mail address because it is an
efficient means of communication and creates a written record
of the communications between them and the agency. An agency
should not require a requestor to provide a driver's license
number, date of birth, or photo identification. This
information is not necessary for the agency to contact the
requestor and requiring it might intimidate some requestors.

An agency may ask a requestor to prioritize the records
he or she is requesting so that the agency is able to provide
the most important records first. An agency is not required
to ask for prioritization, and a requestor is not required to
provide it.

An agency cannot require the requestor to disclose the
purpose of the request with two exceptions. RCW 42.17.270/42.56.080. First, if the request is for a list of
individuals, an agency may ask the requestor if he or she
intends to use the records for a commercial purpose.2 An
agency should specify on its request form that the agency is
not authorized to provide public records consisting of a list
of individuals for a commercial use. RCW 42.17.260(9)/42.56.070(9).

Second, an agency may seek information sufficient to
allow it to determine if another statute prohibits disclosure.
For example, some statutes allow an agency to disclose a
record only to a claimant for benefits or his or her
representative. In such cases, an agency is authorized to ask
the requestor if he or she fits this criterion.

An agency is not authorized to require a requestor to
indemnify the agency. Op. Att'y Gen. 12 (1988).3

Notes:

1Hangartner v. City of Seattle, 151 Wn.2d 439, 447, 90 P.3d 26 (2004) ("there is no official format
for a valid PDA request.").

2Op. Att'y Gen. 12 (1988), at 11; Op. Att'y Gen. 2 (1998), at 4.

3RCW 42.17.258/42.56.060 provides: "No public agency, public official, public employee, or
custodian shall be liable, nor shall a cause of action exist, for any loss or damage based upon the release
of a public record if the public agency, public official, public employee, or custodian acted in good faith
in attempting to comply with the provisions of this chapter." Therefore, an agency has little need for
an indemnification clause. Requiring a requestor to indemnify an agency inhibits some requestors from
exercising their right to request public records. Op. Att'y Gen. 12 (1988), at 11.

[]

PROCESSING OF PUBLIC RECORDS REQUESTS -- GENERALNEW SECTIONWAC 44-14-040
Processing of public records
requests -- general.
(1) Providing "fullest assistance." The
(name of agency) is charged by statute with adopting rules
which provide for how it will "provide full access to public
records," "protect records from damage or disorganization,"
"prevent excessive interference with other essential functions
of the agency," provide "fullest assistance" to requestors,
and provide the "most timely possible action" on public
records requests. The public records officer or designee will
process requests in the order allowing the most requests to be
processed in the most efficient manner.

(2) Acknowledging receipt of request. Within five
business days of receipt of the request, the public records
officer will do one or more of the following:

(a) Make the records available for inspection or copying;

(b) If copies are requested and payment of a deposit for
the copies, if any, is made or terms of payment are agreed
upon, send the copies to the requestor;

(c) Provide a reasonable estimate of when records will be
available; or

(d) If the request is unclear or does not sufficiently
identify the requested records, request clarification from the
requestor. Such clarification may be requested and provided
by telephone. The public records officer or designee may
revise the estimate of when records will be available; or

(e) Deny the request.

(3) Consequences of failure to respond. If the (name of
agency) does not respond in writing within five business days
of receipt of the request for disclosure, the requestor should
consider contacting the public records officer to determine
the reason for the failure to respond.

(4) Protecting rights of others. In the event that the
requested records contain information that may affect rights
of others and may be exempt from disclosure, the public
records officer may, prior to providing the records, give
notice to such others whose rights may be affected by the
disclosure. Such notice should be given so as to make it
possible for those other persons to contact the requestor and
ask him or her to revise the request, or, if necessary, seek
an order from a court to prevent or limit the disclosure. The
notice to the affected persons will include a copy of the
request.

(5) Records exempt from disclosure. Some records are
exempt from disclosure, in whole or in part. If the (name of
agency) believes that a record is exempt from disclosure and
should be withheld, the public records officer will state the
specific exemption and provide a brief explanation of why the
record or a portion of the record is being withheld. If only
a portion of a record is exempt from disclosure, but the
remainder is not exempt, the public records officer will
redact the exempt portions, provide the nonexempt portions,
and indicate to the requestor why portions of the record are
being redacted.

(6) Inspection of records.

(a) Consistent with other demands, the (name of agency)
shall promptly provide space to inspect public records. No
member of the public may remove a document from the viewing
area or disassemble or alter any document. The requestor
shall indicate which documents he or she wishes the agency to
copy.

(b) The requestor must claim or review the assembled
records within thirty days of the (name of agency's)
notification to him or her that the records are available for
inspection or copying. The agency will notify the requestor
in writing of this requirement and inform the requestor that
he or she should contact the agency to make arrangements to
claim or review the records. If the requestor or a
representative of the requestor fails to claim or review the
records within the thirty-day period or make other
arrangements, the (name of agency) may close the request and
refile the assembled records. Other public records requests
can be processed ahead of a subsequent request by the same
person for the same or almost identical records, which can be
processed as a new request.

(7) Providing copies of records. After inspection is
complete, the public records officer or designee shall make
the requested copies or arrange for copying.

(8) Providing records in installments. When the request
is for a large number of records, the public records officer
or designee will provide access for inspection and copying in
installments, if he or she reasonably determines that it would
be practical to provide the records in that way. If, within
thirty days, the requestor fails to inspect the entire set of
records or one or more of the installments, the public records
officer or designee may stop searching for the remaining
records and close the request.

(9) Completion of inspection. When the inspection of the
requested records is complete and all requested copies are
provided, the public records officer or designee will indicate
that the (name of agency) has completed a diligent search for
the requested records and made any located nonexempt records
available for inspection.

(10) Closing withdrawn or abandoned request. When the
requestor either withdraws the request or fails to fulfill his
or her obligations to inspect the records or pay the deposit
or final payment for the requested copies, the public records
officer will close the request and indicate to the requestor
that the (name of agency) has closed the request.

(11) Later discovered documents. If, after the (name of
agency) has informed the requestor that it has provided all
available records, the (name of agency) becomes aware of
additional responsive documents existing at the time of the
request, it will promptly inform the requestor of the
additional documents and provide them on an expedited basis.

[]

Comments on WAC 44-14-040NEW SECTIONWAC 44-14-04001
Introduction.
Both requestors and
agencies have responsibilities under the act. The public
records process can function properly only when both parties
perform their respective responsibilities. An agency has a
duty to promptly provide access to all nonexempt public
records.1 A requestor has a duty to request identifiable
records, inspect the assembled records or pay for the copies,
and be respectful to agency staff.2

Requestors should keep in mind that all agencies have
essential functions in addition to providing public records.
Agencies also have greatly differing resources. The act
recognizes that agency public records procedures should
prevent "excessive interference" with the other "essential
functions" of the agency. RCW 42.17.290/42.56.100.
Therefore, while providing public records is an essential
function of an agency, it is not required to abandon its
other, nonpublic records functions. Agencies without a
full-time public records officer may assign staff part-time to
fulfill records requests, provided the agency is providing the
"fullest assistance" and the "most timely possible" action on
the request. The proper level of staffing for public records
requests will vary among agencies, considering the complexity
and number of requests to that agency, agency resources, and
the agency's other functions.

The burden of proof is on an agency to prove its estimate
of time to provide a full response is "reasonable." RCW 42.17.340(2)/42.56.550(2). An agency should be prepared to
explain how it arrived at its estimate of time and why the
estimate is reasonable.

Agencies are encouraged to use technology to provide
public records more quickly and, if possible, less
expensively. An agency is allowed, of course, to do more for
the requestor than is required by the letter of the act.
Doing so often saves the agency time and money in the long
run, improves relations with the public, and prevents
litigation. For example, agencies are encouraged to post many
nonexempt records of broad public interest on the internet.
This may result in fewer requests for public records. See
RCW 43.105.270 (state agencies encouraged to post frequently
sought documents on the internet).

Notes:

1RCW 42.17.260(1)/42.56.070(1) (agency "shall make available for public inspection and copying all
public records, unless the record falls within the specific exemptions" listed in the act or other statute).

NEW SECTIONWAC 44-14-04002
Obligations of requestors.
(1)
Reasonable notice that request is for public records. A
requestor must give an agency reasonable notice that the
request is being made pursuant to the act. Requestors are
encouraged to cite or name the act but are not required to do
so.1 A request using the terms "public records," "public
disclosure," "FOIA," or "Freedom of Information Act" (the
terms commonly used for federal records requests) should
provide an agency with reasonable notice in most cases. A
requestor should not submit a "stealth" request, which is
buried in another document in an attempt to trick the agency
into not responding.

(2) Identifiable record. A requestor must request an
"identifiable record" or "class of records" before an agency
must respond to it. RCW 42.17.270/42.56.080 and
42.17.340(1)/42.56.550(1). An "identifiable record" is one
that agency staff can reasonably locate.2 The act does not
allow a requestor to search through agency files for records
which cannot be reasonably identified or described to the
agency.3 However, a requestor is not required to identify the
exact record he or she seeks. For example, if a requestor
requested an agency's "2001 budget," but the agency only had a
2000-2002 budget, the requestor made a request for an
identifiable record.4

An "identifiable record" is not a request for
"information" in general.5 For example, asking "what policies"
an agency has for handling discrimination complaints is merely
a request for "information."6 A request to inspect or copy an
agency's policies and procedures for handling discrimination
complaints would be a request for an "identifiable record."

Public records requests are not interrogatories. An
agency is not required to conduct legal research for a
requestor.7 A request for "any law that allows the county to
impose taxes on me" is not a request for an identifiable
record. Conversely, a request for "all records discussing the
passage of this year's tax increase on real property" is a
request for an "identifiable record."

When a request uses an inexact phrase such as all records
"relating to" a topic (such as "all records relating to the
property tax increase"), the agency may interpret the request
to be for records which directly and fairly address the topic.
When an agency receives a "relating to" or similar request, it
should seek clarification of the request from the requestor.

(3) "Overbroad" requests. An agency cannot "deny a
request for identifiable public records based solely on the
basis that the request is overbroad." RCW 42.17.270/42.56.080. However, if such a request is not for
identifiable records or otherwise is not proper, the request
can still be denied. When confronted with a request that is
unclear, an agency should seek clarification.

Notes:

1Wood v. Lowe, 102 Wn. App. 872, 10 P.3d 494 (2000).

2Bonamy v. City of Seattle, 92 Wn. App. 403, 410, 960 P.2d 447 (1998), review denied, 137 Wn.2d 1012,
978 P.2d 1099 (1999) ("identifiable record" requirement is satisfied when there is a "reasonable description"
of the record "enabling the government employee to locate the requested records.").

7See Limstrom, 136 Wn.2d at 604, n.3 (act does not require "an agency to go outside its own records and
resources to try to identify or locate the record requested."); Bonamy, 92 Wn. App. at 409 (act "does not
require agencies to research or explain public records, but only to make those records accessible to the
public.").

[]

NEW SECTIONWAC 44-14-04003
Responsibilities of agencies in
processing requests.
(1) Similar treatment and purpose of the
request. The act provides: "Agencies shall not distinguish
among persons requesting records, and such persons shall not
be required to provide information as to the purpose for the
request" (except to determine if the request is for a
commercial use or would violate another statute prohibiting
disclosure). RCW 42.17.270/42.56.080.1 The act also requires
an agency to take the "most timely possible action on
requests" and make records "promptly available." RCW 42.17.290/42.56.100 and 42.17.270/42.56.080. However,
treating requestors similarly does not mean that agencies must
process requests strictly in the order received because this
might not be providing the "most timely possible action" for
all requests. A relatively simple request need not wait for a
long period of time while a much larger request is being
fulfilled. Agencies are encouraged to be flexible and process
as many requests as possible even if they are out of order.3

An agency cannot require a requestor to state the purpose
of the request (with limited exceptions). RCW 42.17.270/42.56.080. However, in an effort to better
understand the request and provide all responsive records, the
agency can inquire about the purpose of the request. The
requestor is not required to answer the agency's inquiry (with
limited exceptions as previously noted).

(2) Provide "fullest assistance" and "most timely
possible action." The act requires agencies to adopt and
enforce reasonable rules to provide for the "fullest
assistance" to a requestor. RCW 42.17.290/42.56.100. The
"fullest assistance" principle should guide agencies when
processing requests. In general, an agency should devote
sufficient staff time to processing records requests,
consistent with the act's requirement that fulfilling requests
should not be an "excessive interference" with the agency's
"other essential functions." RCW 42.17.290/42.56.100. The
agency should recognize that fulfilling public records
requests is one of the agency's duties, along with its others.

The act also requires agencies to adopt and enforce rules
to provide for the "most timely possible action on requests."
RCW 42.17.290/42.56.100. This principle should guide agencies
when processing requests. It should be noted that this
provision requires the most timely "possible" action on
requests. This recognizes that an agency is not always
capable of fulfilling a request as quickly as the requestor
would like.

(3) Communicate with requestor. Communication is usually
the key to a smooth public records process for both requestors
and agencies. Clear requests for a small number of records
usually do not require predelivery communication with the
requestor. However, when an agency receives a large or
unclear request, the agency should communicate with the
requestor to clarify the request. If the request is modified
orally, the public records officer or designee should
memorialize the communication in writing.

For large requests, the agency may ask the requestor to
prioritize the request so that he or she receives the most
important records first. If feasible, the agency should
provide periodic updates to the requestor of the progress of
the request. Similarly, the requestor should periodically
communicate with the agency and promptly answer any
clarification questions. Sometimes a requestor finds the
records he or she is seeking at the beginning of a request.
If so, the requestor should communicate with the agency that
the requested records have been provided and that he or she is
canceling the remainder of the request. If the requestor's
cancellation communication is not in writing, the agency
should confirm it in writing.

(4) Failure to provide initial response within five
business days. Within five business days of receiving a
request, an agency must provide an initial response to
requestor. The initial response must do one of four things:

(a) Provide the record;

(b) Acknowledge that the agency has received the request
and provide a reasonable estimate of the time it will require
to fully respond;

(c) Seek a clarification of the request; or

(d) Deny the request. RCW 42.17.320/42.56.520. An
agency's failure to provide an initial response is arguably a
violation of the act.2

(5) No duty to create records. An agency is not
obligated to create a new record to satisfy a records request.4
However, sometimes it is easier for an agency to create a
record responsive to the request rather than collecting and
making available voluminous records that contain small pieces
of the information sought by the requestor or find itself in a
controversy about whether the request requires the creation of
a new record. The decision to create a new record is left to
the discretion of the agency. If the agency is considering
creating a new record instead of disclosing the underlying
records, it should obtain the consent of the requestor to
ensure that the requestor is not actually seeking the
underlying records.

(6) Provide a reasonable estimate of the time to fully
respond. Unless it is providing the records or claiming an
exemption from disclosure within the five-business day period,
an agency must provide a reasonable estimate of the time it
will take to fully respond to the request. RCW 42.17.320/42.56.520. Fully responding can mean processing the
request (assembling records, redacting, preparing a
withholding index, or notifying third parties named in the
records who might seek an injunction against disclosure) or
determining if the records are exempt from disclosure.

An estimate must be "reasonable." The act provides a
requestor a quick and simple method of challenging the
reasonableness of an agency's estimate. RCW 42.17.340(2)/42.56.550(2). See WAC 44-14-08004 (5)(b). The
burden of proof is on the agency to prove its estimate is
"reasonable." RCW 42.17.340(2)/42.56.550(2).

To provide a "reasonable" estimate, an agency should not
use the same estimate for every request. An agency should
roughly calculate the time it will take to respond to the
request and send estimates of varying lengths, as appropriate.
Some very large requests can legitimately take months or
longer to fully provide. There is no standard amount of time
for fulfilling a request so reasonable estimates should vary.

Some agencies send form letters with thirty-day estimates
to all requestors, no matter the size or complexity of the
request. Form letter thirty-day estimates are rarely
"reasonable" because an agency, which has the burden of proof,
could find it difficult to prove that every single request it
receives would take the same thirty-day period.

In order to avoid unnecessary litigation over the
reasonableness of an estimate, an agency should briefly
explain to the requestor the basis for the estimate in the
initial response. The explanation need not be elaborate but
should allow the requestor to make a threshold determination
of whether he or she should question that estimate further or
has a basis to seek judicial review of the reasonableness of
the estimate.

An agency should either fulfill the request within the
estimated time or, if warranted, communicate with the
requestor about clarifications or the need for a revised
estimate. An agency should not ignore a request and then
continuously send extended estimates. Routine extensions with
little or no action to fulfill the request would show that the
previous estimates probably were not "reasonable." Extended
estimates are appropriate when the circumstances have changed
(such as an increase in other requests or discovering that the
request will require extensive redaction). An estimate can be
revised when appropriate, but unwarranted serial extensions
have the effect of denying a requestor access to public
records.

(7) Seek clarification of a request or additional time.
An agency may seek a clarification of an "unclear" request.
RCW 42.17.320/42.56.520. An agency can only seek a
clarification when the request is objectively "unclear."
Seeking a "clarification" of an objectively clear request
delays access to public records.

If the requestor fails to clarify an unclear request, the
agency need not respond to it further. RCW 42.17.320/42.56.520. If the requestor does not respond to the
agency's request for a clarification within thirty days of the
agency's request, the agency may consider the request
abandoned. If the agency considers the request abandoned, it
should send a closing letter to the requestor.

An agency may take additional time to provide the records
or deny the request if it is awaiting a clarification. RCW 42.17.320/42.56.520. After providing the initial response and
perhaps even beginning to assemble the records, an agency
might discover it needs to clarify a request and is allowed to
do so. A clarification could also affect a reasonable
estimate.

(8) Preserving requested records. If a requested record
is scheduled shortly for destruction, and the agency receives
a public records request for it, the record cannot be
destroyed until the request is resolved. RCW 42.17.290/42.56.100.5 Once a request has been closed, the
agency can destroy the requested records in accordance with
its retention schedule.

(9) Searching for records. An agency must conduct an
objectively reasonable search for responsive records. A
requestor is not required to "ferret out" records on his or
her own.6 A reasonable agency search usually begins with the
public records officer for the agency or a records coordinator
for a department of the agency deciding where the records are
likely to be and who is likely to know where they are. One of
the most important parts of an adequate search is to decide
how wide the search will be. If the agency is small, it might
be appropriate to initially ask all agency employees if they
have responsive records. If the agency is larger, the agency
may choose to initially ask only the staff of the department
or departments of an agency most likely to have the records.
For example, a request for records showing or discussing
payments on a public works project might initially be directed
to all staff in the finance and public works departments if
those departments are deemed most likely to have the
responsive documents, even though other departments may have
copies or alternative versions of the same documents.
Meanwhile, other departments that may have documents should be
instructed to preserve their records in case they are later
deemed to be necessary to respond to the request. The agency
could notify the requestor which departments are being
surveyed for the documents so the requestor may suggest other
departments. It is better to be over inclusive rather than
under inclusive when deciding which staff should be contacted,
but not everyone in an agency needs to be asked if there is no
reason to believe he or she has responsive records. An e-mail
to staff selected as most likely to have responsive records is
usually sufficient. Such an e-mail also allows an agency to
document whom it asked for records.

Agency policies should require staff to promptly respond
to inquiries about responsive records from the public records
officer.

After records which are deemed responsive are located, an
agency should take reasonable steps to narrow down the number
of records to those which are responsive. In some cases, an
agency might find it helpful to consult with the requestor on
the scope of the documents to be assembled. An agency cannot
"bury" a requestor with nonresponsive documents. However, an
agency is allowed to provide arguably, but not clearly,
responsive records to allow the requestor to select the ones
he or she wants, particularly if the requestor is unable or
unwilling to help narrow the scope of the documents.

(10) Expiration of reasonable estimate. An agency should
provide a record within the time provided in its reasonable
estimate or communicate with the requestor that additional
time is required to fulfill the request based on specified
criteria. Unjustified failure to provide the record by the
expiration of the estimate is a denial of access to the
record.

(11) Notice to affected third parties. Sometimes an
agency decides it must release all or a part of a public
record affecting a third party. The third party can file an
action to obtain an injunction to prevent an agency from
disclosing it, but the third party must prove the record or
portion of it is exempt from disclosure.7RCW 42.17.330/42.56.540. Before sending a notice, an agency
should have a reasonable belief that the record is arguably
exempt. Notices to affected third parties when the records
could not reasonably be considered exempt might have the
effect of unreasonably delaying the requestor's access to a
disclosable record.

The act provides that before releasing a record an agency
may, at its "option," provide notice to a person named in a
public record or to whom the record specifically pertains
(unless notice is required by law). RCW 42.17.330/42.56.540.
This would include all of those whose identity could
reasonably be ascertained in the record and who might have a
reason to seek to prevent the release of the record. An
agency has wide discretion to decide whom to notify or not
notify. First, an agency has the "option" to notify or not
(unless notice is required by law). RCW 42.17.330/42.56.540.
Second, if it acted in good faith, an agency cannot be held
liable for its failure to notify enough people under the act.
RCW 42.17.258/42.56.060. However, if an agency had a
contractual obligation to provide notice of a request but
failed to do so, the agency might lose the immunity provided
by RCW 42.17.258/42.56.060 because breaching the agreement
probably is not a "good faith" attempt to comply with the act.

The practice of many agencies is to give ten days'
notice. Many agencies expressly indicate the deadline date to
avoid any confusion. More notice might be appropriate in some
cases, such as when numerous notices are required, but every
additional day of notice is another day the potentially
disclosable record is being withheld. When it provides a
notice, the agency should include the notice period in the
"reasonable estimate" it provides to a requestor.

The notice informs the third party that release will
occur on the stated date unless he or she obtains an order
from a court enjoining release. The requestor has an interest
in any legal action to prevent the disclosure of the records
he or she requested. Therefore, the agency's notice should
inform the third party that he or she should name the
requestor as a party to any action to enjoin disclosure. If
an injunctive action is filed, the third party or agency
should name the requestor as a party or, at a minimum, must
inform the requestor of the action to allow the requestor to
intervene.

(12) Later discovered records. If the agency becomes
aware of the existence of records responsive to a request
which were not provided, the agency should notify the
requestor in writing and provide a brief explanation of the
circumstances.

Notes:

1See also Op. Att'y Gen. 2 (1998).

2See Smith v. Okanogan County, 100 Wn. App. 7, 13, 994 P.2d 857 (2000) ("When an agency fails to
respond as provided in RCW 42.17.320 (42.56.520), it violates the act and the individual requesting
the public record is entitled to a statutory penalty.").

3While an agency can fulfill requests out of order, an agency is not allowed to ignore a large request
while it is exclusively fulfilling smaller requests. The agency should strike a balance between fulfilling
small and large requests.

6Daines v. Spokane County, 111 Wn. App. 342, 349, 44 P.3d 909 (2002) ("an applicant need not
exhaust his or her own ingenuity to 'ferret out' records through some combination of 'intuition and
diligent research'”).

7The agency holding the record can also file a RCW 42.17.330/42.56.540 injunctive action to establish
that it is not required to release the record or portion of it.

[]

NEW SECTIONWAC 44-14-04004
Responsibilities of agency in providing
records.
(1) General. An agency may simply provide the
records or make them available within the five-business day
period of the initial response. When it does so, an agency
should also provide the requestor a written cover letter or
e-mail briefly describing the records provided and informing
the requestor that the request has been closed. This assists
the agency in later proving that it provided the specified
records on a certain date and told the requestor that the
request had been closed. However, a cover letter or e-mail
might not be practical in some circumstances, such as when the
agency provides a small number of records or fulfills routine
requests.

An agency can, of course, provide the records sooner than
five business days. Providing the "fullest assistance" to a
requestor would mean providing a readily available record as
soon as possible. For example, an agency might routinely
prepare a premeeting packet of documents three days in advance
of a city council meeting. The packet is readily available so
the agency should provide it to a requestor on the same day of
the request so he or she can have it for the council meeting.

(2) Means of providing access. An agency must make
nonexempt public records "available" for inspection or provide
a copy. RCW 42.17.270/42.56.080. An agency is only required
to make records "available" and has no duty to explain the
meaning of public records.1 Making records available is often
called "access."

Access to a public record can be provided by allowing
inspection of the record, providing a copy, or posting the
record on the agency's web site and assisting the requestor in
finding it (if necessary). An agency must mail a copy of
records if requested and if the requestor pays the actual cost
of postage and the mailing container.2 The requestor can
specify which method of access (or combination, such as
inspection and then copying) he or she prefers. Different
processes apply to requests for inspection versus copying
(such as copy charges) so an agency should clarify with a
requestor whether he or she seeks to inspect or copy a public
record.

An agency can provide access to a public record by
posting it on its web site. If requested, an agency should
provide reasonable assistance to a requestor in finding a
public record posted on its web site. If the requestor does
not have internet access, the agency may provide access to the
record by allowing the requestor to view the record on a
specific computer terminal at the agency open to the public.
An agency is not required to do so. Despite the availability
of the record on the agency's web site, a requestor can still
make a public records request and inspect the record or obtain
a copy of it by paying the appropriate per-page copying
charge.

(3) Providing records in installments. The act now
provides that an agency must provide records "if applicable,
on a partial or installment basis as records that are part of
a larger set of requested records are assembled or made ready
for inspection or disclosure." RCW 42.17.270/42.56.080. The
purpose of this provision is to allow requestors to obtain
records in installments as they are assembled and to allow
agencies to provide records in logical batches. The provision
is also designed to allow an agency to only assemble the first
installment and then see if the requestor claims or reviews it
before assembling the next installments.

Not all requests should be provided in installments. For
example, a request for a small number of documents which are
located at nearly the same time should be provided all at
once. Installments are useful for large requests when, for
example, an agency can provide the first box of records as an
installment. An agency has wide discretion to determine when
providing records in installments is "applicable." However, an
agency cannot use installments to delay access by, for
example, calling a small number of documents an "installment"
and sending out separate notifications for each one. The
agency must provide the "fullest assistance" and the "most
timely possible action on requests" when processing requests.
RCW 42.17.290/42.56.100.

(4) Failure to provide records. A "denial" of a request
can occur when an agency:

Does not have the record;

Fails to respond to a request;

Claims an exemption of the entire record or a portion of
it; or

Without justification, fails to provide the record after
the reasonable estimate expires.

(a) When the agency does not have the record. An agency
is only required to provide access to public records it has or
has used.3 An agency is not required to create a public record
in response to a request.

An agency must only provide access to public records in
existence at the time of the request. An agency is not
obligated to supplement responses. Therefore, if a public
record is created or comes into the possession of the agency
after the request is received by the agency, it is not
responsive to the request and need not be provided. A
requestor must make a new request to obtain subsequently
created public records.

Sometimes more than one agency holds the same record.
When more than one agency holds a record, and a requestor
makes a request to the first agency, the first agency cannot
respond to the request by telling the requestor to obtain the
record from the second agency. Instead, an agency must
provide access to a record it holds regardless of its
availability from another agency.4

An agency is not required to provide access to records
that were not requested. An agency does not "deny" a request
when it does not provide records that are outside the scope of
the request because they were never asked for.

(b) Claiming exemptions.

(i) Redactions. If a portion of a record is exempt from
disclosure, but the remainder is not, an agency generally is
required to redact (black out) the exempt portion and then
provide the remainder. RCW 42.17.310(2)/42.56.210(2). There
are a few exceptions.5 Withholding an entire record where only
a portion of it is exempt violates the act.6 Some records are
almost entirely exempt but small portions remain nonexempt.
For example, information revealing the identity of a crime
victim is exempt from disclosure. RCW 42.17.310
(1)(e)/42.56.210 (1)(e). If a requestor requested a police
report in a case in which charges have been filed, the agency
must redact the victim's identifying information but provide
the rest of the report.

Statistical information "not descriptive of any readily
identifiable person or persons" is generally not subject to
redaction or withholding. RCW 42.17.310(2)/42.56.210(2). For
example, if a statute exempted the identity of a person who
had been assessed a particular kind of penalty, and an agency
record showed the amount of penalties assessed against various
persons, the agency must provide the record with the names of
the persons redacted but with the penalty amounts remaining.

Originals should not be redacted. For paper records, an
agency should redact materials by first copying the record and
then either using a black marker on the copy or covering the
exempt portions with copying tape, and then making a copy. It
is often a good practice to keep the initial copies which were
redacted in case there is a need to make additional copies for
disclosure or to show what was redacted.

(ii) Brief explanation of withholding. When an agency
claims an exemption for an entire record or portion of one, it
must inform the requestor of the statutory exemption and
provide a brief explanation of how the exemption applies to
the record or portion withheld. RCW 42.17.310(4)/42.56.210(4). The brief explanation should cite
the statute the agency claims grants an exemption from
disclosure. The brief explanation should provide enough
information for a requestor to make a threshold determination
of whether the claimed exemption is proper. Nonspecific
claims of exemption such as "proprietary" or "privacy" are
insufficient.

One way to properly provide a brief explanation of the
withheld record or redaction is for the agency to provide a
withholding index. It identifies the type of record, its date
and number of pages, and the author or recipient of the record
(unless their identity is exempt).7 The withholding index need
not be elaborate but should allow a requestor to make a
threshold determination of whether the agency has properly
invoked the exemption.

(5) Notifying requestor that records are available. If
the requestor sought to inspect the records, the agency should
notify him or her that the entire request or an installment is
available for inspection and ask the requestor to contact the
agency to arrange for a mutually agreeable time for
inspection.8 The notification should recite that if the
requestor fails to inspect or copy the records or make other
arrangements within thirty days of the date of the
notification that the agency will close the request and refile
the records. An agency might consider on a case-by-case basis
sending the notification by certified mail to document that
the requestor received it.

If the requestor sought copies, the agency should notify
him or her of the projected costs and whether a copying
deposit is required before the copies will be made. The
notification can be oral to provide the most timely possible
response.

(6) Documenting compliance. An agency should have a
process to identify which records were provided to a requestor
and the date of production. In some cases, an agency may wish
to number-stamp or number-label paper records provided to a
requestor to document which records were provided. The agency
could also keep a copy of the numbered records so either the
agency or requestor can later determine which records were or
were not provided. However, the agency should balance the
benefits of stamping or labeling the documents and making
extra copies against the costs and burdens of doing so.

If memorializing which specific documents were offered
for inspection is impractical, an agency might consider
documenting which records were provided for inspection by
making an index or list of the files or records made available
for inspection.

5The two main exceptions to the redaction requirement are state "tax information" (RCW 82.32.330
(1)(c)) and law enforcement case files in active cases (Newman v. King County, 133 Wn.2d 565, 574,
947 P.2d 712 (1997). Neither of these two kinds of records must be redacted but rather may be
withheld in their entirety.

8For smaller requests, the agency might simply provide them with the initial response or earlier so no
notification is necessary.

[]

NEW SECTIONWAC 44-14-04005
Inspection of records.
(1) Obligation
of requestor to claim or review records. After the agency
notifies the requestor that the records or an installment of
them are ready for inspection or copying, the requestor must
claim or review the records or the installment. RCW 42.17.300/42.56.120. If the requestor cannot claim or review
the records him or herself, a representative may do so within
the thirty-day period. Other arrangements can be mutually
agreed to between the requestor and the agency.

If a requestor fails to claim or review the records or an
installment after the expiration of thirty days, an agency is
authorized to stop assembling the remainder of the records or
making copies. RCW 42.17.300/42.56.120. If the request is
abandoned, the agency is no longer bound by the records
retention requirements of the act prohibiting the scheduled
destruction of a requested record. RCW 42.17.290/42.56.100.

If a requestor fails to claim or review the records or
any installment of them within the thirty-day notification
period, the agency may close the request and refile the
records. If a requestor who has failed to claim or review the
records then requests the same or almost identical records
again, the agency, which has the flexibility to prioritize its
responses to be most efficient to all requestors, can process
the repeat request for the now-refiled records as a new
request after other pending requests.

(2) Time, place, and conditions for inspection.
Inspection should occur at a time mutually agreed (within
reason) by the agency and requestor. An agency should not
limit the time for inspection to times in which the requestor
is unavailable. Requestors cannot dictate unusual times for
inspection. The agency is only required to allow inspection
during the agency's customary office hours. RCW 42.17.280/42.56.090. Often an agency will provide the records
in a conference room or other office area.

The inspection of records cannot create "excessive
interference" with the other "essential functions" of the
agency. RCW 42.17.290/42.56.100. Similarly, copying records
at agency facilities cannot "unreasonably disrupt" the
operations of the agency. RCW 42.17.270/42.56.080.

An agency may have an agency employee observe the
inspection or copying of records by the requestor to ensure
they are not destroyed or disorganized. RCW 42.17.290/42.56.100. A requestor cannot alter, mark on, or
destroy an original record during inspection. To select a
paper record for copying during an inspection, a requestor
must use a nonpermanent method such as a removable adhesive
note or paper clip.

Inspection times can be broken down into reasonable
segments such as half days. However, inspection times cannot
be broken down into unreasonable segments to either harass the
agency or delay access to the timely inspection of records.

NEW SECTIONWAC 44-14-04006
Closing request and documenting
compliance.
(1) Fulfilling request and closing letter. A
records request has been fulfilled and can be closed when a
requestor has inspected all the requested records, all copies
have been provided, a web link has been provided (with
assistance from the agency in finding it, if necessary), an
unclear request has not been clarified, a request or
installment has not been claimed or reviewed, or the requestor
cancels the request. An agency should provide a closing
letter stating the scope of the request and memorializing the
outcome of the request. A closing letter may not be necessary
for smaller requests. The outcome described in the closing
letter might be that the requestor inspected records, copies
were provided (with the number range of the stamped or labeled
records, if applicable), the agency sent the requestor the web
link, the requestor failed to clarify the request, the
requestor failed to claim or review the records within thirty
days, or the requestor canceled the request. The closing
letter should also ask the requestor to promptly contact the
agency if he or she believes additional responsive records
have not been provided.

(2) Returning assembled records. An agency is not
required to keep assembled records set aside indefinitely.
This would "unreasonably disrupt" the operations of the
agency. RCW 42.17.270/42.56.080. After a request has been
closed, an agency should return the assembled records to their
original locations. Once returned, the records are no longer
subject to the prohibition on destroying records scheduled for
destruction under the agency's retention schedule. RCW 42.17.290/42.56.100.

(3) Retain copy of records provided. In some cases, it
may be wise for the agency to keep a separate copy of the
records it copied and provided in response to a request. This
allows the agency to document what was provided. A growing
number of requests are for a copy of the records provided to
another requestor, which can easily be fulfilled if the agency
retains a copy of the records provided to the first requestor.
The copy of the records provided should be retained for a
period of time consistent with the agency's retention
schedules for records related to disclosure of documents.

[]

NEW SECTIONWAC 44-14-04007
Later-discovered records.
An agency has
no obligation to search for records responsive to a closed
request. Sometimes an agency discovers responsive records
after a request has been closed. An agency should provide the
later-discovered records to the requestor.

EXEMPTIONSNEW SECTIONWAC 44-14-060
Exemptions.
(1) The Public Records Act
provides that a number of types of documents are exempt from
public inspection and copying. In addition, documents are
exempt from disclosure if any "other statute" exempts or
prohibits disclosure. Requestors should be aware of the
following exemptions, outside the Public Records Act, that
restrict the availability of some documents held by (name of
agency) for inspection and copying:

(List other laws)

(2) The (agency) is prohibited by statute from disclosing
lists of individuals for commercial purposes.

[]

Comments to WAC 44-14-060NEW SECTIONWAC 44-14-06001
Agency must publish list of applicable
exemptions.
An agency must publish and maintain a list of the
"other statute" exemptions from disclosure (that is, those
exemptions found outside the Public Records Act) that it
believes potentially exempt records it holds from disclosure.
RCW 42.17.260(2)/42.56.070(2). The list is "for informational
purposes" only and an agency's failure to list an exemption
"shall not affect the efficacy of any exemption." RCW 42.17.260(2)/42.56.070(2). A list of possible "other statute"
exemptions is posted on the web site of the Municipal Research
Service Center at www.mrsc.org/Publications/prdpub04.pdf
(scroll to Appendix C).

[]

NEW SECTIONWAC 44-14-06002
Summary of exemptions.
(1) General.
The act and other statutes contain hundreds of exemptions from
disclosure and dozens of court cases interpret them. A full
treatment of all exemptions is beyond the scope of the model
rules. Instead, these comments to the model rules provide
general guidance on exemptions and summarize a few of the most
frequently invoked exemptions. However, the scope of
exemptions is determined exclusively by statute and case law;
the comments to the model rules merely provide guidance on a
few of the most common issues.

An exemption from disclosure will be narrowly construed
in favor of disclosure. RCW 42.17.251/42.56.030. An
exemption from disclosure must specifically exempt a record or
portion of a record from disclosure. RCW 42.17.260(1)/42.56.070(1). An exemption will not be inferred.1

An agency cannot define the scope of a statutory
exemption through rule making or policy.2 An agency agreement
or promise not to disclose a record cannot make a disclosable
record exempt from disclosure. RCW 42.17.260(1)/42.56.070(1).3
Any agency contract regarding the disclosure of records should
recite that the act controls.

An agency must describe why each withheld record or
redacted portion of a record is exempt from disclosure. RCW 42.17.310(4)/42.56.210(4). One way to describe why a record
was withheld or redacted is by using a withholding index.

After invoking an exemption in its response, an agency
may revise its original claim of exemption in a response to a
motion to show cause.4

Exemptions are "permissive rather than mandatory." Op.
Att'y Gen. 1 (1980), at 5. Therefore, an agency has the
discretion to provide an exempt record. However, in contrast
to a waivable "exemption," an agency cannot provide a record
when a statute makes it "confidential" or otherwise prohibits
disclosure. For example, the Health Care Information Act
generally prohibits the disclosure of medical information
without the patient's consent. RCW 70.02.020(1). If a
statute classifies information as "confidential" or otherwise
prohibits disclosure, an agency has no discretion to release a
record or the confidential portion of it.5 Some statutes
provide civil and criminal penalties for the release of
particular "confidential" records. See RCW 82.32.330(5)
(release of certain state tax information a misdemeanor).

(2) "Privacy" exemption. There is no general "privacy"
exemption. Op. Att'y Gen. 12 (1988).6 However, a few specific
exemptions incorporate privacy as one of the elements of the
exemption. For example, personal information in agency
employee files is exempt to the extent that disclosure would
violate the employee's right to "privacy." RCW 42.17.310
(1)(b)/42.56.210 (1)(b). "Privacy" is then one of the
elements, in addition to the others in RCW 42.17.310
(1)(b)/42.56.210 (1)(b), that an agency or a third party
resisting disclosure must prove.

"Privacy" is defined in RCW 42.17.255/42.56.050 as the
disclosure of information that "(1) Would be highly offensive
to a reasonable person, and (2) is not of legitimate concern
to the public." This is a two-part test requiring the party
seeking to prevent disclosure to prove both elements.7

Because "privacy" is not a stand-alone exemption, an
agency cannot claim RCW 42.17.255/42.56.050 as an exemption.8

(3) Attorney-client privilege. The attorney-client
privilege statute, RCW 5.60.060 (2)(a), is an "other statute"
exemption from disclosure.9 In addition, RCW 42.17.310
(1)(j)/42.56.210 (1)(j) exempts attorney work-product
involving a "controversy," which means completed, existing, or
reasonably anticipated litigation involving the agency.10 The
exact boundaries of the attorney-client privilege and
work-product doctrine is beyond the scope of these comments.
However, in general, the attorney-client privilege covers
records reflecting communications transmitted in confidence
between a public official or employee of a public agency
acting in the performance of his or her duties and an attorney
serving in the capacity of legal advisor for the purpose of
rendering or obtaining legal advice, and records prepared by
the attorney in furtherance of the rendition of legal advice.
The attorney-client privilege does not exempt records merely
because they reflect communications in meetings where legal
counsel was present or because a record or copy of a record
was provided to legal counsel if the other elements of the
privilege are not met.11 A guidance document prepared by the
attorney general's office on the attorney-client privilege and
work-product doctrine is available at
www.atg.wa.gov/records/modelrules.

(4) Deliberative process exemption.RCW 42.17.310
(1)(i)/42.56.210 (1)(i) exempts "Preliminary drafts, notes,
recommendations, and intra-agency memorandums in which
opinions are expressed or policies formulated or recommended"
except if the record is cited by the agency.

In order to rely on this exemption, an agency must show
that the records contain predecisional opinions or
recommendations of subordinates expressed as part of a
deliberative process; that disclosure would be injurious to
the deliberative or consultative function of the process; that
disclosure would inhibit the flow of recommendations,
observations, and opinions; and finally, that the materials
covered by the exemption reflect policy recommendations and
opinions and not the raw factual data on which a decision is
based.12 Courts have held that this exemption is "severely
limited" by its purpose, which is to protect the free flow of
opinions by policy makers.13 It applies only to those portions
of a record containing recommendations, opinions, and proposed
policies; it does not apply to factual data contained in the
record.14 The exemption does not apply to records or portions
of records concerning the implementation of policy or the
factual basis for the policy.15 The exemption does not apply
merely because a record is called a "draft" or stamped
"draft." Recommendations that are actually implemented lose
their protection from disclosure after they have been adopted
by the agency.16

(6) Commercial use exemption. The act does not allow an
agency to provide access to "lists of individuals requested
for commercial purposes." RCW 42.17.260(9)/42.56.070(9). An
agency may require a requestor to sign a declaration that he
or she will not put a list of individuals in the record to use
for a commercial purpose.17 This authority is limited to a
list of individuals, not a list of companies.18 A requestor
who signs a declaration promising not to use a list of
individuals for a commercial purpose, but who then violates
this declaration, could arguably be charged with the crime of
false swearing. RCW 9A.72.040.19

(7) Trade secrets. Many agencies hold sensitive
proprietary information of businesses they regulate. For
example, an agency might require an applicant for a regulatory
approval to submit designs for a product it produces. A
record is exempt from disclosure if it constitutes a "trade
secret" under the Uniform Trade Secrets Act, chapter 19.108 RCW.20 However, the definition of a "trade secret" can be very
complex and often the facts showing why the record is or is
not a trade secret are only known by the potential holder of
the trade secret who submitted the record in question.

When an agency receives a request for a record that might
be a trade secret, often it does not have enough information
to determine whether the record arguably qualifies as a "trade
secret." An agency is allowed additional time under the act
to determine if an exemption might apply. RCW 42.17.320/42.56.520.

When an agency cannot determine whether a requested
record contains a "trade secret," usually it should
communicate with the requestor that the agency is providing
the potential holder of the trade secret an opportunity to
object to the disclosure. The agency should then contact the
potential holder of the trade secret in question and state
that the record will be released in a certain amount of time
unless the holder files a court action seeking an injunction
prohibiting the agency from disclosing the record under RCW 42.17.330/42.56.540. Alternatively, the agency can ask the
potential holder of the trade secret for an explanation of why
it contends the record is a trade secret, and state that if
the record is not a trade secret or otherwise exempt from
disclosure that the agency intends to release it. The agency
should inform the potential holder of a trade secret that its
explanation will be shared with the requestor. The
explanation can assist the agency in determining whether it
will claim the trade secret exemption. If the agency
concludes that the record is arguably not exempt, it should
provide a notice of intent to disclose unless the potential
holder of the trade secret obtains an injunction preventing
disclosure under RCW 42.17.330/42.56.540.

As a general matter, many agencies do not assert the
trade secret exemption on behalf of the potential holder of
the trade secret but rather allow the potential holder to seek
an injunction.

17Op. Att'y Gen. 12 (1988). However, a list of individuals applying for professional licensing or
examination may be provided to professional associations recognized by the licensing or examination
board. RCW 42.17.260(9)/42.56.070(9).

18Op. Att'y Gen. 2 (1998).

19RCW 9A.72.040 provides: "(1) A person is guilty of false swearing if he makes a false statement,
which he knows to be false, under an oath required or authorized by law. (2) False swearing is a gross
misdemeanor." RCW 42.17.270/42.56.080 authorizes an agency to determine if a requestor will use a
list of individuals for commercial purpose. See Op. Att'y Gen. 12 (1988), at 10-11 (agency could
require requestor to sign affidavit of noncommercial use).

20PAWS II, 125 Wn.2d at 262.

[]

COSTS OF PROVIDING COPIES OF PUBLIC RECORDSNEW SECTIONWAC 44-14-070
Costs of providing copies of public
records.
(1) Costs for paper copies. There is no fee for
inspecting public records. A requestor may obtain standard
black and white photocopies for (amount) cents per page and
color copies for (amount) cents per page.

(If agency decides to charge more than fifteen cents per
page, use the following language:) The (name of agency)
charges (amount) per page for a standard black and white
photocopy of a record selected by a requestor. A statement of
the factors and the manner used to determine this charge is
available from the public records officer.

Before beginning to make the copies, the public records
officer or designee may require a deposit of up to ten percent
of the estimated costs of copying all the records selected by
the requestor. The public records officer or designee may
also require the payment of the remainder of the copying costs
before providing all the records, or the payment of the costs
of copying an installment before providing that installment.
The (name of agency) will not charge sales tax when it makes
copies of public records.

(2) Costs for electronic records. The cost of electronic
copies of records shall be (amount) for information on a
floppy disk and (amount) for information on a CD-ROM.

(3) Costs of mailing. The (name of agency) may also
charge actual costs of mailing, including the cost of the
shipping container.

(4) Payment. Payment may be made by cash, check, or
money order to the (name of agency).

[]

Comments to WAC 44-14-070NEW SECTIONWAC 44-14-07001
General rules for charging for copies.
(1) No fees for costs of inspection. An agency cannot charge
a fee for locating public records or for preparing the records
for inspection or copying. RCW 42.17.300/42.56.120.1 An
agency cannot charge a "redaction fee" for the staff time
necessary to prepare the records for inspection, for the
copying required to redact records before they are inspected,
or an archive fee for getting the records from off-site. Op.
Att'y Gen. 6 (1991). These are the costs of making the
records available for inspection or copying and cannot be
charged to the requestor.

(2) Standard photocopy charges. Standard photocopies are
black and white 8x11 paper copies. An agency can choose to
calculate its copying charges for standard photocopies or to
opt for a default copying charge of no more than fifteen cents
per page.

If it attempts to charge more than the fifteen cents per
page maximum for photocopies, an agency must establish a
statement of the "actual cost" of the copies it provides,
which must include a "statement of the factors and the manner
used to the determine the actual per page cost." RCW 42.17.260(7)/42.56.070(7). An agency may include the costs
"directly incident" to providing the copies such as paper,
copying equipment, and staff time to make the copies. RCW 42.17.260 (7)(a)/42.56.070 (7)(a).2 An agency failing to
properly establish a copying charge in excess of the default
fifteen cents per page maximum is limited to the default
amount. RCW 42.17.260 (7)(a) and (b)/42.56.070 (7)(a) and (b)
and 42.17.300/42.56.120.

If it charges more than the default rate of fifteen cents
per page, an agency must provide its calculations and the
reasoning for its charges. RCW 42.17.260(7)/42.56.070(7) and
42.17.300/42.56.120.3 A price list with no analysis is
insufficient. An agency's calculations and reasoning need not
be elaborate but should be detailed enough to allow a
requestor or court to determine if the agency has properly
calculated its copying charges. An agency should generally
compare its copying charges to those of commercial copying
centers.

If an agency opts for the default copying charge of
fifteen cents per page, it need not calculate its actual
costs. RCW 42.17.260(8)/42.56.070(8).

(3) Charges for copies other than standard photocopies.
Nonstandard copies include color copies, engineering drawings,
and photographs. An agency can charge its actual costs for
nonstandard photocopies. RCW 42.17.300/42.56.120. For
example, when an agency provides records in an electronic
format by putting the records on a disk, it may charge its
actual costs for the disk. The agency can provide a requestor
with documentation for its actual costs by providing a catalog
or price list from a vendor.

(4) Copying charges apply to copies selected by
requestor. Often a requestor will seek to inspect a large
number of records but only select a smaller group of them for
copying. Copy charges can only be charged for the records
selected by the requestor. RCW 42.17.300/42.56.120 (charges
allowed for "providing" copies to requestor).

The requestor should specify whether he or she seeks
inspection or copying. The agency should inform the requestor
that inspection is free. This can be noted on the agency's
request form. If the requestor seeks copies, then the agency
should inform the requestor of the copying charges for the
request. An agency should not assemble a large number of
records, fail to inform the requestor that inspection is free,
and then attempt to charge for copying all the records.

Sometimes a requestor will choose to pay for the copying
of a large batch of records without inspecting them. This is
allowed, provided that the requestor is informed that
inspection is free. Informing the requestor on a request form
that inspection is free is sufficient.

(5) Use of outside vendor. An agency is not required to
copy records at its own facilities. An agency can send the
project to a commercial copying center and bill the requestor
for the amount charged by the vendor. An agency is encouraged
to do so when an outside vendor can make copies more quickly
and less expensively than an agency. An agency can arrange
with the requestor for him or her to pay the vendor directly.
An agency cannot charge the default fifteen cents per page
rate when its "actual cost" at a copying vendor is less. The
default rate is only for agency-produced copies. RCW 42.17.300/42.56.120.

(6) Sales tax. An agency cannot charge sales tax on
copies it makes at its own facilities. RCW 82.12.02525.

(7) Costs of mailing. If a requestor asks an agency to
mail copies, the agency may charge for the actual cost of
postage and the shipping container (such as an envelope). RCW 42.17.260 (7)(a)/42.56.070 (7)(a).

Notes:

1See also Op. Att'y Gen. 6 (1991).

2The costs of staff time is allowed only for making copies. An agency cannot charge for staff time for
locating records or other noncopying functions. SeeRCW 42.17.300/42.56.120 ("No fee shall be
charged for locating public documents and making them available for copying.").

NEW SECTIONWAC 44-14-07005
Waiver of copying charges.
An agency
has the discretion to waive copying charges. For
administrative convenience, many agencies waive copying
charges for small requests. For example, the attorney
general's office does not charge copying fees if the request
is for twenty-five or fewer standard photocopies.

[]

NEW SECTIONWAC 44-14-07006
Requiring partial payment.
(1) Copying
deposit. An agency may charge a deposit of up to ten percent
of the estimated copying costs of an entire request before
beginning to copy the records. RCW 42.17.300/42.56.120.1 The
estimate must be reasonable. An agency can require the
payment of the deposit before copying an installment of the
records or the entire request. The deposit applies to the
records selected for copying by the requestor, not all the
records made available for inspection. An agency is not
required to charge a deposit. An agency might find a deposit
burdensome for small requests where the deposit might be only
a few dollars. Any unused deposit must be refunded to the
requestor.

When copying is completed, the agency can require the
payment of the remainder of the copying charges before
providing the records. For example, a requestor makes a
request for records that comprise one box of paper documents.
The requestor selects the entire box for copying. The agency
estimates that the box contains three thousand pages of
records. The agency charges ten cents per page so the cost
would be three hundred dollars. The agency obtains a ten
percent deposit of thirty dollars and then begins to copy the
records. The total number of pages turns out to be two
thousand nine hundred so the total cost is two hundred ninety
dollars. The thirty dollar deposit is credited to the two
hundred ninety dollars. The agency requires payment of the
remaining two hundred sixty dollars before providing the
records to the requestor.

(2) Copying charges for each installment. If an agency
provides records in installments, the agency may charge and
collect all applicable copying fees (not just the ten percent
deposit) for each installment. RCW 42.17.300/42.56.120. The
agency may agree to provide an installment without first
receiving payment for that installment.

REVIEW OF DENIALS OF PUBLIC RECORDSNEW SECTIONWAC 44-14-080
Review of denials of public records.
(1)
Petition for internal administrative review of denial of
access. Any person who objects to the initial denial or
partial denial of a records request may petition in writing
(including e-mail) to the public records officer for a review
of that decision. The petition shall include a copy of or
reasonably identify the written statement by the public
records officer or designee denying the request.

(2) Consideration of petition for review. The public
records officer shall promptly provide the petition and any
other relevant information to (public records officer's
supervisor or other agency official designated by the agency
to conduct the review). That person will immediately consider
the petition and either affirm or reverse the denial within
two business days following the (agency's) receipt of the
petition, or within such other time as (name of agency) and
the requestor mutually agree to.

(3) (Applicable to state agencies only.) Review by the
attorney general's office. Pursuant to RCW 42.17.325/42.56.530, if the (name of state agency) denies a
requestor access to public records because it claims the
record is exempt in whole or in part from disclosure, the
requestor may request the attorney general's office to review
the matter. The attorney general has adopted rules on such
requests in WAC 44-06-160.

(4) Judicial review. Any person may obtain court review
of denials of public records requests pursuant to RCW 42.17.340/42.56.550 at the conclusion of two business days
after the initial denial regardless of any internal
administrative appeal.

[]

Comments to WAC 44-14-080NEW SECTIONWAC 44-14-08001
Agency internal procedure for review of
denials of requests.
The act requires an agency to "establish
mechanisms for the most prompt possible review of decisions
denying" records requests. RCW 42.17.320/42.56.520. An
agency internal review of a denial need not be elaborate. It
could be reviewed by the public records officer's supervisor,
or other person designated by the agency. The act deems
agency review to be complete two business days after the
initial denial, after which the requestor may obtain judicial
review. Large requests or requests involving many redactions
may take longer than two business days for the agency to
review. In such a case, the requestor could agree to a longer
internal review period.

[]

NEW SECTIONWAC 44-14-08002
Attorney general's office review of
denials by state agencies.
The attorney general's office is
authorized to review a state agency's claim of exemption and
provide a written opinion. RCW 42.17.325/42.56.530. This
only applies to state agencies and a claim of exemption. See
WAC 44-06-160. A requestor may initiate such a review by
sending a request for review to Public Records Review, Office
of the Attorney General, P.O. Box 40100, Olympia, Washington
98504-0100 or publicrecords@atg.wa.gov.

[]

NEW SECTIONWAC 44-14-08003
Alternative dispute resolution.
Requestors and agencies are encouraged to resolve public
records disputes through alternative dispute resolution
mechanisms such as mediation and arbitration. No mechanisms
for formal alternative dispute resolution currently exist in
the act but parties are encouraged to resolve their disputes
without litigation.

[]

NEW SECTIONWAC 44-14-08004
Judicial review.
(1) Seeking judicial
review. The act provides that an agency's decision to deny a
request is final for purposes of judicial review two business
days after the initial denial of the request. RCW 42.17.320/42.56.520.1 Therefore, the statute allows a
requestor to seek judicial review two business days after the
initial denial whether or not he or she has exhausted the
internal agency review process.2 An agency should not have an
internal review process that implies that a requestor cannot
seek judicial review until internal reviews are complete
because RCW 42.17.320/42.56.520 allows judicial review two
business days after the initial denial.

The act provides a speedy remedy for a requestor to
obtain a court hearing on whether the agency has violated the
act. RCW 42.17.340 (1) and (2)/42.56.550 (1) and (2). The
purpose of the quick judicial procedure is to allow requestors
to expeditiously find out if they are entitled to obtain
public records.3 To speed up the court process, a public
records case may be decided merely on the "motion" of a
requestor and "solely on affidavits." RCW 42.17.340 (1) and
(3)/42.56.550 (1) and (3).

(2) Statute of limitations. The statute of limitations
for an action under the act is one year after the agency's
claim of exemption or the last production of a record on a
partial or installment basis. RCW 42.17.340(6)/42.56.550(6).

(3) Procedure. To initiate court review of a public
records case, a requestor can file a "motion to show cause"
which directs the agency to appear before the court and show
any cause why the agency did not violate the act. RCW 42.17.340 (1) and (2)/42.56.550 (1) and (2).4 The case must be
filed in the superior court in the county in which the record
is maintained. RCW 42.17.340 (1) and (2)/42.56.550 (1) and
(2). In a case against a county, the case may be filed in the
superior court of that county, or in the superior court of
either of the two nearest adjoining counties. RCW 42.17.340(5)/42.56.550(5). The show-cause procedure is
designed so that a nonattorney requestor can obtain judicial
review himself or herself without hiring an attorney. A
requestor can file a motion for summary judgment to adjudicate
the case.5 However, most cases are decided on a motion to show
cause.6

(4) Burden of proof. The burden is on an agency to
demonstrate that it complied with the act. RCW 42.17.340 (1)
and (2)/42.56.550 (1) and (2).

(5) Types of cases subject to judicial review. The act
provides three mechanisms for court review of a public records
dispute.

(a) Denial of record. The first kind of judicial review
is when a requestor's request has been denied by an agency.
RCW 42.17.340(1)/42.56.550(1). This is the most common kind
of case.

(b) "Reasonable estimate." The second form of judicial
review is when a requestor challenges an agency's "reasonable
estimate" of the time to provide a full response. RCW 42.17.340(2)/42.56.550(2).

(c) Injunctive action to prevent disclosure. The third
mechanism of judicial review is an injunctive action to
restrain the disclosure of public records. RCW 42.17.330/42.56.540. An action under this statute can be
initiated by the agency, a person named in the disputed
record, or a person to whom the record "specifically
pertains." The party seeking to prevent disclosure has the
burden of proving the record is exempt from disclosure.7 The
party seeking to prevent disclosure must prove both the
necessary elements of an injunction and that a specific
exemption prevents disclosure.8

(6) "In camera" review by court. The act authorizes a
court to review withheld records or portions of records "in
camera." RCW 42.17.340(3)/42.56.550(3). "In camera" means a
confidential review by the judge alone in his or her chambers.
Courts are encouraged to conduct an in camera review because
it is often the only way to determine if an exemption has been
properly claimed.9

An agency should prepare an in camera index of each
withheld record or portion of a record to assist the judge's
in camera review. This is a second index, in addition to a
withholding index provided to the requestor. The in camera
index should number each withheld record or redacted portion
of the record, provide the unredacted record or portion to the
judge with a reference to the index number, and provide a
brief explanation of each claimed exemption corresponding to
the numbering system. The agency's brief explanation should
not be as detailed as a legal brief because the opposing party
will not have an opportunity to review it and respond. The
agency's legal briefing should be done in the normal course of
pleadings, with the opposing party having an opportunity to
respond.

The in camera index and disputed records or unredacted
portions of records should be filed under seal. The judge
should explain his or her ruling on each withheld record or
redacted portion by referring to the numbering system in the
in camera index. If the trial court's decision is appealed,
the in camera index and its attachments should be made part of
the record on appeal and filed under seal in the appellate
court.

(7) Attorneys' fees, costs, and penalties to prevailing
requestor. The act requires an agency to pay a prevailing
requestor's reasonable attorneys' fees, costs, and a daily
penalty. RCW 42.17.340(4)/42.56.550(4). Only a requestor can
be awarded attorneys' fees, costs, or a daily penalty under
the act; an agency or a third party resisting disclosure
cannot.10 A requestor is the "prevailing" party when he or she
obtains a judgment in his or her favor, the suit was
reasonably necessary to obtain the record, or a wrongfully
withheld record was provided for another reason.11 In an
injunctive action under RCW 42.17.330/42.56.540, the
prevailing requestor cannot be awarded attorneys' fees, costs,
or a daily penalty against an agency if the agency took the
position that the record was subject to disclosure.12

The purpose of the act's attorneys' fees, costs, and
daily penalty provisions is to reimburse the requestor for
vindicating the public's right to obtain public records, to
make it financially feasible for requestors to do so, and to
deter agencies from improperly withholding records.13 However,
a court is only authorized to award "reasonable" attorneys'
fees. RCW 42.17.340(4)/42.56.550(4). A court has discretion
to award attorneys' fees based on an assessment of reasonable
hourly rates and which work was necessary to obtain the
favorable result.14

The award of "costs" under the act is for all of a
requestor's nonattorney-fee costs and is broader than the
court costs awarded to prevailing parties in other kinds of
cases.15

A daily penalty of between five dollars to one hundred
dollars must be awarded to a prevailing requestor, regardless
of an agency's "good faith."16 An agency's "bad faith" can
warrant a penalty on the higher end of this scale.17 The
penalty is per day, not per-record per-day.18

2See, e.g., WAC 44-06-120 (attorney general's office internal review procedure specifying that review is
final when the agency renders a decision on the appeal, or the close of the second business day after it
receives the appeal, "whichever occurs first").